- if you're using a different distribution, MS can still sue you.
- if you're a commercial free software developer, MS can still sue you.

So the way Novell benefits is that people who are scared by FUD about microsoft patents will buy SuSE instead of, say, redhat. By making this deal, Novell is actually helping to spread the FUD.

But there's more! If I, as a commercial f/l/oss developer want to be sure not to be sued by microsoft, I could make use of the way the GPL works and ask Novell to send me the source code I want to base my work on, even if it's not originally by Novell. Then Novell can do two things: make sure I and everyone who gets code from me won't get sued by microsoft, or stop distributing that particular program. Novell can't do the first, because according to their deal they only get protection for paying customers, and I'm not paying but just using my right granted by the GPL. So Novell has to stop distributing it. Ouch. And the winner is microsoft.

I was just about to post a link to the groklaw article and a few comments on this when I saw this thread..

I think that there are a few good points made on groklaw and that the move is pretty much a bad thing, a compromise Novell shouldn't have made.

First, there are concerns about a GPL violation as described by Perens. Second, the move can very well be seen as a legitimization of the vulnerability of GNU/Linux to Microsoft's patents. How? Well, Novell is paying royalties on Microsoft's patents in their version of GNU/Linux? What can be a better way to legitimize Microsofts "rights" over GNU/Linux code.

What better way is there for Microsoft to assert these rights in order to gain backing for potential future lawsuits against *the rest* of "unprotected" GNU/Linux distributors.

Sounds to me like Microsoft has been studying ways to get around the shield that the GPL represented to GNU/Linux and actually found a way to lay a blow. However whether they succeeded is still up in the air. Let's see what lawyers conclude about whether this presents a violation or not.

If it is a violation then I suppose Novell would have to cease distributing all GPL code in SuSE essentially having to suspend its development, or the deal with Microsoft would be off.

If that happens I think it'd be a big show off of GPL power and genius, IMHO.

Otherwise, it might just be that MS has found a soft spot and we're in for potential harm.

Anyway, I might put these comments into a short article to publish later, after I read more on the subject.

Reading further comments around on this.. the whole thing is starting to feel rather sensational, but not really in a good way at all..

To think that this actually happened, that Microsoft dared to pave the way to "Microsoft licensed GNU/Linux" is just unthinkable, incredible, not sure what to say..

It is our baby, GNU/Linux, thing we supported, spread the word about, nurtured and cherished, and now Microsoft who has all this time been spitting on it is coming to tell us that *they* can now essentially sell us the *only* approved, legal GNU/Linux through a new whore they bought, Novell.

This post might sound slightly emotional, but... Not only that there is no way I will even dream of buying Novell GNU/Linux, but I wont even consider using OpenSUSE anymore.

RedHat is closer to our side. Fedora is pretty much 100% Free Software. Ubuntu is also closer, but there is now Ubuntu based 100% Free Software gNewSense. I think that it is becoming increasingly important to support Free Software purism these days because this compromising, mixing with proprietary is exactly what is giving leverage to companies like Microsoft.

The compromising attitude is also exactly what leads to deals like this MS-Novell.

I truly hope GPL shows its teeth on this one and blows this deal out of the sky.

Still reading comments.. and I found a very interesting one by Bruce Perens here which just confirms what I suspect, that Microsoft found (or at least they think they did) a way around GPL:

Brucen Perens wrote:

Microsoft is bragging in their press release that they found a way around the GPL by "using a covenant", probably a covenant not to sue, we'll have to see the details. Whatever way they do it, they are at least circumventing the spirit of the license, and possibly the letter. Shame on Novell for helping them do that. And doesn't this remind you why we need a GPL3.

Edit: Another insightful comment:

thedevnull wrote:

Bruce you are absolutely correct. In light of historic events, patent cooperation sounds like a euphemism for impending lawsuit. Whenever lawyers posture in coordination with a patent system that is painfully broken we should expect very dangerous developments. Maybe MS/Novell will extend the â€œgenuine advantageâ€ to Linux. =P And what an advantage it isn't! MS Linux anyone? Novell no more for me and my customers.

A larger question I ask is why litigation is the primary method of "competition." Acknowledging our injustice system is about the economic endowment of the participants I just sent my donations to the FSF, SFLC and OSDL!

My mind isn't fully settled a full opinion on this, I feel it's bad, but I'm yet sure how bad.
I've found some things on the subject from the developers of Mono rather interesting. This is a link to Miguel de Icaza's blog post replying to community concerns (yes I know he works for Novell, but still I find it interesting).

It isn't surprising that Miguel de Icaza would feel positively about this, or at least say so. Not only because he works for Novell, but judging from what I heard of him previously he was quite willing to go make compromises.

Weird though I perceived him as pro-FSF at first, for some reason, possibly because of its ties to GNOME..

There are a few things wrong here, and his response doesn't really address these concerns in a satisfactory way.

He is answering to the question of "which patents is mono infringing on", but why are we even talking about patent infrigements from Free Software projects? Isn't that exactly what MS wants us to start buzzing with now? Isn't that the effect of this MS-Novell deal? Talking about patent infringements and then ways of defending it which apparently include making agreements with MS is acknowledging the validity of software patents and even further amplifying the sound of the threat of MS litigation (which even if it never happens, is a brake towards further adoption of GNU/Linux). After SCO has been fudding in this area (only with copyrights) for years, now we've got MS and Novell doing the same freaking thing. Will it ever end?

And what he says on whether there could have been a better deal for "Open Source" sounds quite meaningless to me, like deviating around from core issues brought up here.. He keeps comparing it with Sun-MS and Apple-MS partnerships instead of looking at the direct implications this deal has for Novell and the FOSS community at large.

These issues still remain unanswered and I doubt Icaza will have much to offer to its resolving aside from possibly some concrete factual insider information.